Opinion
No. 15–P–201.
10-03-2016
COMMONWEALTH v. Joseph B. MacDONALD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Joseph MacDonald, was convicted of kidnapping and assault and battery. He now appeals, arguing that he was denied the effective assistance of counsel, that the prosecutor's closing argument was improper, and that the trial judge erred in denying his motion for a required finding of not guilty. We affirm.
Background. Based upon the evidence at trial, the jury could have found the following facts. In February, 2013, Nicole Jefferson was “a severe heroin addict.” In early February, she agreed to allow an individual she knew as “D” to use her car to sell drugs. Jefferson rode with D “[f]or a little bit” before deciding that she did not “want to do it anymore.” Jefferson dropped off D at a gas station; there was an argument; and D forcibly took Jefferson's cellular telephone (cell phone) from her. Later, Jefferson drove to D's house to retrieve her cell phone and his mother let her in. Jefferson did not see the cell phone in D's room but she did see a safe; she threw the safe out of the window and after leaving the house retrieved it and pried it open. Inside she found $1,700, which she spent on herself.
The next evening, the defendant telephoned Jefferson and asked for a ride to his mother's house; Jefferson had known the defendant for approximately twenty years. Around 10:00 P.M., Jefferson drove to an apartment in Rockland where she and the defendant had grown up. The defendant met her outside and asked her to come in and to help him inject heroin. Jefferson agreed and followed the defendant into the apartment.
As Jefferson followed the defendant toward the bathroom, she was confronted by three men; one of the men had a gun with a long barrel and tape around the handle. The three men stuck a sock in her mouth, blindfolded her, tied her to a chair, and beat her over a period of four hours, using their fists, the gun, and a hammer. They demanded to know where the money and the safe were. Using the cell phone that D had stolen from Jefferson earlier, the men showed Jefferson pictures of her child and threatened to kill the child if Jefferson went to the police. Eventually, Jefferson told the three men that the safe was at her brother's home in Carver. The men were removing Jefferson from the apartment when she looked up and saw the defendant looking out through the sliding screen door. When the group arrived in Carver, Jefferson was able to tell her brother to telephone the police. The police arrived and they placed four men and one woman under arrest.
Rockland police Detective James Casper obtained a search warrant for the apartment where the incident had taken place and he recovered cut pieces of black rope and cell phone cords, along with bloody bedding and a hammer. On February 7, 2013, Casper went back to the apartment building to interview witnesses and he overheard the defendant speaking with an upstairs neighbor. Casper waited until the defendant left the neighbor's apartment and then he interviewed the female resident of that apartment. The next day, Casper received a telephone call from the apartment complex maintenance person. A shotgun with tape wrapped around its handle had been discovered approximately 100 feet from the apartment where the assault took place.
The defendant and three others were indicted for armed kidnapping, assault and battery by means of a dangerous weapon (shotgun), assault and battery, and intimidation of a witness. Two men pleaded guilty before trial; the defendant and a codefendant were convicted of the lesser included offenses of kidnapping and assault and battery.
The defendant's motion for a required finding of not guilty of intimidation of a witness was allowed, and he was found not guilty of assault and battery.
Discussion. 1. Ineffective assistance. At trial, Jefferson testified that the men who attacked her had been “going around with [her] pictures out of [her] phone, asking people if they knew who [she] was.” She stated that her friend Chuck Smith told her that he had been approached by three black men and asked whether he knew Jefferson and whether he would be willing to “set her up.” Smith denied having this conversation with Jefferson in his testimony before the grand jury; however, defense counsel apparently could not locate Smith before trial in order to call him as a witness. The defendant now argues that he was denied the effective assistance of counsel by counsel's failure to impeach Jefferson with Smith's grand jury testimony. See Mass. G. Evid. § 806 (2016).
The defendant has not moved for a new trial, see Commonwealth v.. Zinser, 446 Mass. 807, 810 (2006), so we do not know whether counsel's failure to use the grand jury minutes was a tactical decision. However, considering the defendant's claim “[u]nder the familiar Saferian test,” we see nothing in counsel's performance that “fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ “ or that “ ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ “ Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “[F]ailure to impeach a witness does not prejudice the defendant or constitute ineffective assistance,” Commonwealth v. Bart B., 424 Mass. 911, 916 (1997), and the verdicts demonstrate that Jefferson's credibility was successfully impeached. Smith's testimony would have been cumulative; “[t]he decision not to raise [inconsistencies regarding Smith] merely for quantity's sake does not constitute ineffective assistance of counsel,” Commonwealth v. Britt, 465 Mass. 87, 94 (2013) ; and “[t]rial counsel does not necessarily provide ineffective assistance by ‘not prob[ing] every inconsistency.’ “ Commonwealth v. Jewett, 442 Mass. 356, 363 (2004), quoting from Commonwealth v. Sylvester, 35 Mass.App.Ct. 906, 907 (1993). On this record, the defendant has not met his burden of demonstrating that “better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). See Commonwealth v. Phinney, 446 Mass. 155, 162 (2006).
Jefferson's extensive criminal record, as well as false statements she had made to the police, were presented to the jury through direct and cross-examination. Cross-examination of Jefferson comprised over 100 pages of trial transcript.
2. Remaining claims. The defendant's remaining claims require little discussion. We see nothing improper in the prosecutor's closing argument, and the absence of an objection “provide[s] some guidance as to whether [the] particular argument was prejudicial in the circumstances.” Commonwealth v. Kozec, 399 Mass. 514, 518 n. 8 (1987). More specifically, where the jurors acquitted the defendant of crimes involving a shotgun, any inferences the prosecutor urged them to draw from evidence regarding the timing of the defendant's conversation with his upstairs neighbor and the discovery of the shotgun could not have created a substantial risk of a miscarriage of justice.
The judge properly denied the defendant's motions for required findings of not guilty where evidence that the defendant lured Jefferson up to the apartment and was there when she was removed four hours later, when viewed “in the light most favorable to the Commonwealth,” was sufficient to establish that the defendant participated in the crimes as a joint venturer. Commonwealth v. Arce, 467 Mass. 329, 333 (2014). A reasonable juror could conclude from evidence of the defendant's actions and his presence in the apartment while the assaults took place that “the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent.” Commonwealth v. Britt, supra at 100–101, quoting from Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). The trial judge gave detailed instructions on the law of joint venture, and the elements of the predicate crimes with which the defendant was charged, and the defendant was satisfied with his instructions. Although the evidence against the defendant was circumstantial, the judge correctly concluded that it was sufficient evidence to overcome the defendant's motions. See Commonwealth v. Arce, supra .